[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 07, 2007
No. 07-12749 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-953-498
VILMA GLORIA RUANO DE ESPINOZA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 7, 2007)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Vilma Gloria Ruano De Espinoza (“Ruano”), a native and citizen of El
Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”)
denial of her motion for reconsideration/motion to reopen. Ruano argues that the
BIA abused its discretion by denying her motion for reconsideration/motion to
reopen because she was denied the opportunity to apply for voluntary departure.
Ruano contends that the Immigration Judge (“IJ”) and the BIA erred in issuing a
final order of removal before the scheduled master calendar hearing, at which she
could have applied for voluntary departure. Second, Ruano asserts that she had
previously filed an application for special rule cancellation of removal pursuant to
the Nicaraguan Adjustment and Central American Relief Act (“NACARA”),
Pub.L.No. 105-100, 202, 111 Stat. 2160, 2193 (1998), and contends that she did
not abandon her application for such relief because a copy of her previous
application was already included in the administrative record.
For the reasons set forth more fully below, we deny the petition for review in
part and dismiss the petition for review in part.
We review the BIA’s denial of a motion for reconsideration and a motion to
reopen for an abuse of discretion. Assa’ad v. U. S. Att’y Gen., 332 F.3d 1321,
1341 (11th Cir. 2003) (motion for reconsideration); Gbaya v. U.S. Att’y Gen., 342
F.3d 1219, 1220 (11th Cir. 2003) (motion to reopen). Judicial review of the denial
of discretionary relief in this context “is limited to determining whether there has
been an exercise of administrative discretion and whether the matter of exercise
has been arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149
(11th Cir. 2005) (quotation omitted).
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After the BIA has affirmed an IJ’s order of removal, the alien may seek
reconsideration on the ground that the BIA has made a legal or factual error. See
INA § 240(c)(6); 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). A motion
for reconsideration must specify the errors of law or fact in the previous order and
be supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C). Motions to
reconsider are disfavored in removal proceedings. See INS v. Doherty, 502 U.S.
314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992) (discussing motions to
reopen and explaining that such motions are disfavored because, “as a general
matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States”).
Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion is granted.”
“A motion to reopen proceedings shall not be granted unless it appears to the [BIA]
that evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing. . . .” Id. In addition, a
motion to reopen “for the purpose of affording the alien an opportunity to apply for
any form of discretionary relief [shall not] be granted if it appears that the alien’s
right to apply for such relief was fully explained to him or her” and the alien was
afforded an opportunity to apply for such relief. Id.
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We have previously held that:
[a]t a minimum, there are at least three independent grounds upon
which [the BIA] may deny a motion to reopen: 1) failure to establish a
prima facie case; 2) failure to introduce evidence that was material
and previously unavailable; and 3) a determination that despite the
alien’s statutory eligibility for relief, he or she is not entitled to a
favorable exercise of discretion.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The BIA retains
broad discretion to deny a motion to reopen and may do so “even if the party
moving has made out a prima facie case for relief.” Anin v. Reno, 188 F.3d 1273,
1279 (11th Cir. 1999) (quotation and citation omitted).
Here, the BIA construed Ruano’s motion before it as a motion for
reconsideration. However, Ruano failed to specify any errors of law or fact in
either the IJ’s or the BIA’s orders. Instead, Ruano asserted a new claim – that the
IJ denied her due process rights by entering a final order of removal because
voluntary departure was still available to her. To the extent that Ruano asked the
BIA to reopen the proceedings to allow her to seek voluntary departure, she failed
to submit any evidence to show prima facie eligibility for such relief or assert any
facts or evidence that could not have been discovered or presented to the IJ during
the proceedings below. To the contrary, the record demonstrates that Ruano,
represented by counsel, had notice of, and numerous opportunities to request, such
relief. Moreover, even assuming that Ruano presented evidence of her eligibility
for voluntary departure, the BIA nevertheless has discretion to deny her motion to
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reopen. Anin, 188 F.3d at 1279. Accordingly, the BIA did not abuse its discretion
in denying Ruano’s motion for reconsideration/motion to reopen, and we deny the
petition for review in this respect.
We need not address Ruano’s remaining claim that her application for
NACARA relief should have been deemed filed in light of the fact that a copy of
her previous application for such relief was already included in the administrative
record. Ruano failed to raise this claim before the BIA and, thus, we lack
jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Sundar v. INS, 328 F.3d 1320,
1323 (11th Cir. 2003) (determining that we “lack jurisdiction to consider claims
that have not been raised before the BIA”). Although we have indicated that the
exhaustion requirement of § 1252(d)(1) may not apply to prohibit review of certain
constitutional claims, we have determined that the requirement does apply in
circumstances where, as here, the claim at issue is a procedural due process claim.
Compare Sundar, 328 F.3d at 1325 (acknowledging that constitutional challenges
that cannot be resolved by a BIA decision may not require exhaustion) with
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)
(holding that petitioner’s allegation of a due process violation was “precisely the
kind of procedural error which requires exhaustion”). Accordingly, we dismiss the
petition for review in this respect.
In light of the foregoing, Ruano’s petition for review is
DENIED IN PART, DISMISSED IN PART.
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